Liability for impaired driving: expanding the scope.

• Author: Drozdowski, Kelsey
• Position: Special Report on Insurance - Childs v. Desormeaux, [2002] O.J. No. 3289 (Ont. S.C.J.

The May 2004 decision of the Ontario Court of Appeal in Childs v. Desormeaux, 2004 (Childs) has recently expanded the potential liability of social hosts to include third party users of the road injured by an impaired driver who was a guest of the host. The plaintiff, Childs, was rendered a paraplegic after the car in which she was a passenger was struck by the car driven by the defendant, Desormeaux. Desormeaux was impaired and had been drinking at a Bring Your Own Booze (BYOB) party hosted by the defendants, Zimmerman and Courtier, prior to the accident. Childs sued Desormeaux as well as Zimmerman and Courtier. In the particular circumstances of the case, where the social hosts did not provide nor serve alcohol to Desormeaux, did not know how much Desormeaux had to drink at the party, and did not know that he was impaired when he left the party, the Court of Appeal held that it would not be just to impose a duty of care on the social hosts in relation to users of the road. However, the Court of Appeal also specifically held that a social host may have a duty of care to users of the road in other circumstances, especially where the social host knows that the intoxicated guest is going to drive and does not make reasonable efforts to prevent it. This gives rise to a potentially drastic expansion of liability for the actions of one's "neighbour", as that concept was defined in Donoghue v. Stevenson, 1932. Childs has sought leave to appeal to the Supreme Court of Canada.

In Childs, the Ontario Court of Appeal applied the test in Arms v. Merton London Borough Council, 1978, affirmed in Kamloops (City) v. Nielsen, 1984, to determine whether the social hosts owed a duty of care to Childs. The test requires that the court answer two questions:

* Is there a sufficiently close relationship between the parties such that in the reasonable contemplation of the defendants carelessness on their part might cause damage to the plaintiffs?

* If so, are there any considerations which ought to negate or limit (a) the scope of the duty (b) the class of persons to whom the duty is owed or (c) the damages to which the breach of the duty may give rise?

This test has also been applied by Canadian courts in determining that a commercial host owes a duty of care to a guest: Jordan House Ltd. v. Menow, 1974 or to third party users of the road: Stewart v. Pettie, 1995, and in determining whether the same duties of care are owed by an employer where an employee causes...